A PROJECT ON MULTI PARTY LITIGATION

IN PRIVATE INTERNATIONAL LAW

Subject Conflict of Laws

Submitted To: Mr. P. P. Rao

Faculty, CNLU
Submitted By: Sushant Kumar
Roll no. 69
5th Year, 9th semester

Chanakya National Law University, Patna

Research Methodology
Aims and Objectives:

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The aim of the project is to present a detailed study of Multi Party Litigation In Private
International Law and the legal frame work related to it through different writings, articles
and case comments.
Scope and Limitations:
The project is basically based on the doctrinal method of research as no field work is done on
this particular topic. The whole project is made with the use of the secondary sources
particularly based only on article of J. J. Fawcett Multi Party Litigation In Private
International Law who is a Professor of International Commercial Law, University of
Nottingham. This article is based on a talk given at the British Institute of International
and Comparative Law in June 1994.
Though the topic is an immense project and pages can be written over the topic but because
of certain restrictions and limitations I was not able to deal with the topic in great detail.
Mode of Citation:
The researcher has followed a uniform mode of citation throughout the course of this research
paper.
Sources of Data:
The following secondary sources of data have been used in the project1. Articles
2. Books
3. Websites

Acknowledgement

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I feel myself highly delighted, as it gives me incredible pleasure

to present a research work on Multi Party Litigation in Private
International Law
I would like to enlighten my readers regarding this topic and I
hope I have tried my best to pave the way for bringing more
luminosity to this topic.
I am grateful to my faculty in charge Mr. P. P. Rao who has given
me the idea and encouraged me to complete this project. I would
like to thank librarian of CNLU for their interest in providing me
ample research material.
Finally yet importantly I would like to thank my parents for the
financial support.

Table of content
1. Research Methodology............................................................................2
2. Acknowledgement...................................................................................3
3. Introduction..............................................................................................5
4. Conflict of Laws: A Conceptual View....................................................7
5. Multi-Party Litigation..............................................................................11
6. Order 11 of Rule of Supreme Court........................................................13
7. Brussels and Lugano Convention...........................................................15
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8. Article 6 of Brussels and Lugano Convention........................................17

9. Article 6 & Order 11: A Critique..............................................................20
10. Additional Requirement............................................................................21
11. Declining Jurisdiction under Brussels and Lugano Convention..............23
12. Multi-Party Cases: Is Special Choice of Law Required............................25
13. Conclusion.................................................................................................27
14. Bibliography..............................................................................................28

Introduction
With the advent of globalisation and with India poised as a major international and global
player in the world economy, it is apposite to consider the multi party litigation aspects. The
subject of the present article falls within the ambit of what is considered in law as the
doctrine of conflict of laws or what has often been described as Private International
Law. A trenchant exposition of this subject has been eloquently summarised by J H C
Morris, in his classical treatise, The Conflict of Laws1 in the following terms: The conflict of
laws is that part of the private law of a particular country which deals with cases having a
foreign element. Foreign element simply means a contact with some system of law other
than that of the forum, that is the country whose courts are seized of the case.
Talking about International law is the term commonly used for referring to laws that govern
the conduct of independent nations in their relationships with one another. It differs from
other legal systems in that it primarily concerns provinces rather than private citizens. In
1

www.halsburys.in/conflict-of-laws.html

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other words it is that body of law which is composed for its greater part of the principles and
rules of conduct which States feel themselves bound to observe, and therefore, do commonly
observe in their relations with each other and which includes also:
(a) The rules of law relating to the function of international institutions or organizations,
their relations with each other and their relations with States and individuals; and
(b) Certain rules of law relating to individuals and non-state entities so far as the rights and
duties of such individuals and non-state entities are the concern of the international
community2.
However, the term "international law" can refer to three distinct legal disciplines

Public international law which governs the relationship between provinces and
international entities, either as an individual or as a group. It includes the following
specific legal field such as the treaty law, law of sea, international criminal law and
the international humanitarian law.

Private international law or conflict of laws, which addresses the questions of in

which legal jurisdiction may a case be heard and the law concerning which
jurisdictions apply to the issues in the case

Supranational law or the law of supranational organizations, which concerns at

present regional agreements where the special distinguishing quality is that laws of
nation states are held inapplicable when conflicting with a supranational legal system.

This project topic has been covered under the concept of Private International Law, which
sometime has also been referred as Conflict of Laws. Conflict of laws, often called "private
international law" in civil law jurisdictions, is less international than public international law.
It is distinguished from public international law because it governs conflicts between private
persons, rather than states (or other international bodies with standing). It concerns the
questions of which jurisdiction should be permitted to hear a legal dispute between private
parties, and which jurisdiction's law should be applied, therefore raising issues of
international law.

Shaw, Malcolm N, International Law, Cambridge University Press, 5 Ed, 2003, pg. 12.

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Conflicts of Laws: A Conceptual View

Conflict of laws or private international law is a set of procedural rules which determine
which legal system, and the law of which jurisdiction, applies to a given dispute. The rules
typically apply when a legal dispute has a "foreign" element such as a contract agreed by
parties located in different countries. In the Indian context, the private international law
means a branch of Indian law applied by the Indian courts whenever a dispute before it
involves a foreign element3. The term Foreign Element in this context means a fact relevant
to the issue involved in the proceedings which has a geographical or other connection with a
territorial unit other than the territorial unit where the court is dealing with the proceedings.
There may be foreign element because the parties may be citizens of a foreign country, or
domiciled in foreign country and the dispute may relate to their status or their property
situated in that country or the dispute may relate to a contract between a Indian and party
living abroad or the suit may relate to a tort committed outside India4.
The term conflict of laws itself originates from situations where the ultimate outcome of a
legal dispute depended upon which law applied, and the common law courts manner of
resolving the conflict between those laws. Private international law has no real connection
with public international law, and is instead a feature of municipal law which varies from
country to country.
3
4

Atul M. Setalvad, Conflict of Laws, 2nd ed, Lexis Nexis Butterwoth Wadhwa, pg. 1
Ibid

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The three branches of conflict of laws are

Jurisdiction whether the forum court has the power to resolve the dispute at hand

Choice of law the law which is being applied to resolve the dispute

Foreign judgements the ability to recognise and enforce a judgement from an

external forum within the jurisdiction of the adjudicating forum

Its three different names such as conflict of laws, private international law, and international
private law are generally interchangeable, although none of them is wholly accurate or
properly descriptive. The term conflict of laws is primarily used in jurisdictions of the
Common Law legal tradition, such as in the United States, England, Canada, and Australia.
Private international law is used in France, as well as in Italy, Greece, and the Spanish and
Portuguese speaking countries. International private law is used in Germany (along with
other German-speaking countries, Russia and Scotland.
The first instances of conflict of laws in the Western legal tradition can be traced to Greek
law. Ancient Greeks dealt straightforwardly with multistate problems, and did not create
choice of law rules. Leading solutions varied between the creation of courts for international
cases and application of local law on the grounds that it was equally available to citizens of
all states5. More significant developments can be traced to Roman law. Roman civil law (jus
civile) being inapplicable to non-citizens, special tribunals had jurisdiction to deal with
multistate cases. The officers of these specialized tribunals were known as the praetor
peregrine. The Praetor peregrine did not select a jurisdiction whose rules of law should apply.
Instead, they "applied" the "jus gentium." The jus gentium was a flexible and loosely-defined
body of law based on international norms. Thus the praetor peregrine essentially created new
substantive law for each case6. Today, this is called a "substantive" solution to the choice-oflaw issue.
The modern conflict of laws is generally considered to have begun in Northern Italy during
the late Middle Ages and in particular at trading cities such as Genoa, Pisa and Venice. The
need to adjudicate issues involving commercial transactions between traders belonging to
different cities led to the development of the theory of statuta, whereby certain city laws
5
6

Juenger, Friedrich K. (1993). Choice of Law and Multistate Justice. pg. 67

Ibid at pg 10

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would be considered as statuta personalia "following" the person whereby it may act, and
other city laws would be considered as statuta realia, resulting in application of the law of the
city where e.g. the res would be located. Maritime law was also a great driver of international
legal rules; providing for the enforcement of contracts, the protection of shipwrecked sailors
and property, and the maintaining of harbours7.The modern field of conflicts emerged in the
United States during the 19th century with the publishing of Joseph Story's treatise on the
Conflict of Laws in 1834. Story's work had a great influence on the subsequent development
of the field in England such as those written by A.V. Dicey. Much of the English law then
became the basis for conflict of laws for most commonwealth countries.
However, in the U.S., Story's work fell out of fashion in the mid-20th century. Traditional
conflict of law rules were widely perceived as too rigid and unresponsive to the needs of a
highly mobile society undergoing the Second Industrial Revolution. They were replaced with
a number of approaches, of which the most important is the governmental interests analysis
pioneered by law professor Brainerd Currie in a landmark series of essays. As a result of
Currie's work, the rules for conflict of laws in the United States have diverged significantly
from the rules in use at the international level.
There are various stages in the cases where a foreign element is involved and the court has to
decide according to the following norms:1. The court must first decide whether it has jurisdiction and, if so, whether it is the
appropriate venue given the problem of forum shopping.
2. The next step is the characterisation of the cause of action into its component legal
categories which may sometimes involve an incidental question (also note the
distinction between procedural and substantive laws).
3. Each legal category has one or more choice of law rules to determine which of the
competing laws should be applied to each issue. A key element in this may be the
rules on renvoi.
4. Once the applicable law is decided, that law must be proved before the forum court
and applied to reach a judgment.

International Law, Catholic Encyclopedia

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5. The successful party must then enforce the judgment which will first involve the task
of securing cross-border recognition of the judgment.
In those states with an underdeveloped set of Conflict rules, decisions on jurisdiction tend to
be made on an ad hoc basis, with such choice of law rules as have been developed embedded
into each subject area of private law and tending to favour the application of the lex fori or
local law. In states with a more mature system, the set of Conflict rules stands apart from the
local private civil law and adopts a more international point of view both in its terminology
and concepts. For example, in the European Union, all major jurisdictional matters are
regulated under the Brussels Regime, e.g. the rule of lis alibi pendens from Brussels 1
Regulation applies in the Member States and its interpretation is controlled by the European
Court of Justice rather than by local courts. That and other elements of the Conflict rules are
produced supranationally and implemented by treaty or convention. Because these rules are
directly connected with aspects of sovereignty and the extraterritorial application of laws in
the courts of the signatory states, they take on a flavour of public rather than private law
because each state is compromising the usual expectations of their own citizens that they will
have access to their local courts, and that local laws will apply in those local courts. Such
aspects of public policy have direct constitutional significance whether applied in the
European context or in federated nations such as the United States, Canada, and Australia
where the courts have to contend not only with jurisdiction and law conflicts between the
constituent states or territories, but also as between state and federal courts, and as between
constituent states and relevant laws from other states outside the federation 8. Courts faced
with a choice of law issue have a two-stage process:
1. the court will apply the law of the forum (lex fori) to all procedural matters (including,
self-evidently, the choice of law rules); and
2. it counts the factors that connect or link the legal issues to the laws of potentially
relevant states and applies the laws that have the greatest connection, e.g. the law of
nationality (lex patriae) or domicile (lex domicilii) will define legal status and
capacity, the law of the state in which land is situated (lex situs) will be applied to
determine all questions of title, the law of the place where a transaction physically
takes place or of the occurrence that gave rise to the litigation (lex loci actus) will

www.wikipedia.org, last visited on 22nd November, 2010 at 5:00 am

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often be the controlling law selected when the matter is substantive, but the proper
law has become a more common choice.
The private international law is a separate and distinct unit in the English legal system as
much as the law of tort or of contract, but it possesses this unity, not because it deals with one
particular topic, but it always concerned with one or more three questions. To apply one
national legal system as against another may never be an entirely satisfactory approach. The
parties interests may always be better protected by applying a law conceived with
international realities in mind.

Multi Party Litigation

Multi-party litigation in a strict sense is referring to the situation where there are three or
more parties to a single action. Under English law two or more parties may be joined
together in one action as plaintiffs or defendants with the leave of the court or as of right in
certain specified circumstances. Increasingly though, complex litigation involving large
numbers of interested persons may well be conducted by means of a lead action or a
representative action rather than by the joinder of parties; any discussion of multi-party
litigation should encompass these two further types of action9.
Multi-party litigation may well involve a foreign element and is then of interest to the private
international lawyer. A plaintiff may, for example, wish to sue two defendants as joint debtors
or joint tortfeasors. One of the defendants may be resident in England, the other abroad. This
is, on its facts, a simple case. In recent years much more complex cases have arisen where
there are large numbers of joined parties, with the numerous plaintiffs or defendants coming
from many different States. Lead actions are inevitably complex. There may be only one
plaintiff and defendant to the lead action, but in the background there will be numerous other
actions raising the same issues, perhaps involving parties from many different States; once
the lead action is determined, this will effectively decide these other actions, which will then
be settled. Similarly, with a representative action,3 although there may be only one named
plaintiff and defendant there will be numerous other persons, again perhaps from many
different States, who have the same interest in the proceedings and are represented by one of
the named parties. A judgment in the representative action is then binding on the persons
being represented.
9

J. J. Fawcett, Multi-Party Litigation in Private International Law.

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Complex international multi-party litigation can arise in a wide variety of different situations.
Mass tort disasters arising out of, for example, an aeroplane accident 10 or environmental
damage, as in the famous Bhopal case11 are an obvious source. Commercial disputes
involving insurance and reinsurance or carriage of goods by sea are another common source.
International products liability can lead to complex multi-party international litigation, but
can equally well lead to simple multi-party international litigation involving just one plaintiff
and two defendants, each one resident in a different State.
International multi-party litigation poses the same broad questions of private international
law as does single party litigation: is there a basis of jurisdiction; will a court which has
jurisdiction subsequently decline to exercise this; what is the applicable law? The purpose of
this article is to examine whether, when it comes to answering these questions, there are any
particular difficulties in cases of multi-party litigation, and the extent to which these
difficulties have been solved12.
This is perhaps the most easily solved of the difficulties for the private international lawyer
faced with multi-party litigation. This comes about for two reasons. First, the plaintiffs may
well be able to invoke, from the many alternative bases of jurisdiction, a basis which looks to
the cause of action rather than to the presence/residence/domicile of the defendants. Thus in
mass disaster tort and international products liability cases the plaintiffs can sue in England
several defendants if the injury was sustained in England, regardless of the fact that each
defendant is resident in a different State. This is so under both the traditional rules on
jurisdiction and under the rules contained in the Brussels and Lugano Conventions, in cases
coming within the scope of those Conventions. Similarly, in complex contractual disputes a
plaintiff may be able to base jurisdiction in England on the fact that the contract is governed
by English law (in cases coming within the traditional English rules) or that England is the
place of performance of the obligation in question (in cases coming within the scope of the
Brussels or Lugano Convention)13. Second, both the traditional English rules on jurisdiction
and the rules contained in the Brussels and Lugano Conventions contain a provision dealing
specifically with multi-defendant cases. The two provisions in question are, respectively,
Order 11, rule 1(1) (c) of the Rules of the Supreme Court which allows for service of a writ
10

Pan American World Airways Inc. v. Andrews 1992 S.L.T. 268.

11

In re Union Carbide Corp. Gas Plant Disaster at Bhopal, India in Dec. 1984 809 F.2d 195
Ibid FN 9,
Ibid

12
13

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out of the jurisdiction where the claim is brought against a person duly served within or out
of the jurisdiction and a person out of the jurisdiction is a necessary or proper party thereto
and Article 6(1) of the Brussels and Lugano Conventions.

Order 11 of the Rules of the Supreme Court

Order 11 can clearly be used in cases where there are joined defendants. However, the
defendants do not have to be jointly liable or even alternative defendants. Moreover, the
cause of action against the defendants does not have to be the same. This provision can also
be used in cases of third-party proceedings. With lead actions and representative actions there
may only be one named defendant, in which case rule 1(1) (c) is inapplicable. This then raises
the question of whether it is possible deliberately to sidestep this provision by the use of the
lead action or representative action procedure.
Where a case comes within one of the heads of Order 11, rule 1(1) the exercise of jurisdiction
lies within the discretion of the court. The criterion for the exercise of this discretion is that of
forum conveniens. The burden of proof is on the plaintiff to show that England is the
appropriate forum for trial, and that this is clearly so14. However, the attitude of the courts
towards the exercise of the forum conveniens discretion does depend to some extent on which
head of Order 11 is being used. When it comes to rule 1(1)(c) there are inconsistent
statements from the courts. On the one hand, this head has been described as being
particularly exorbitant because it enables a foreigner to be impleaded when the dispute may
have no territorial connection with England at all. Hence there is a need for even greater
caution than normal when exercising the discretion 15. Moreover, it must never become the
practice to bring foreign defendants here as a matter of course, on the grounds that the only
alternative requires more than one suit in more than one different jurisdiction. On the other
hand, it has been said that in practice the factors which make the party served a necessary or
proper party within para (c), will also weigh heavily in favour of granting leave to make a
foreigner a party, although this will not be conclusive. In other words, the policy
considerations, in terms of preventing inconsistent findings, providing justice for the plaintiff
and avoiding unnecessary duplication of proceedings, which justify having this provision in
14
15

Spiliada Maritime Corpn v. Cansulex Ltd, The Spiliada [1987] A.C. 460.
Arab Monetary Fund v. Hashim (No.4) [1992] 1 W.L.R. 553, 557

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the first place, provide good reasons for exercising the discretion to allow service of the writ
out of the jurisdiction16.
However, it is possible to some extent to reconcile these statements. It has to be remembered
that the forum conveniens discretion involves looking both at the connections that the parties
and the dispute have with the alternative forums, and at matters of litigational convenience.
Rule 1(1) (c) is a dubious provision in terms of the connection required, but a good provision
in terms of litigational convenience. Some judges have emphasised the connections aspect of
this provision, others the litigational convenience aspect. What a judge ought to do is to
consider fully aspects, connections and litigational convenience, when exercising the forum
conveniens discretion in cases involving this provision.

16

Amanual v. Alexandros Shipping Co., [1986] 1 Q.B. 464, 478.

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Brussels and Lugano Conventions

Under English law, the jurisdiction of courts traditionally has been based on service of
proceedings that is, the courts will assume jurisdiction when the plaintiff can validly serve a
writ on the defendant. Service can be validly effected whenever the defendant is present
within the jurisdiction. At common law, the English courts have also assumed jurisdiction
when the defendant submits to jurisdiction either by appearing in the proceedings or by
agreement under the terms of a contract.
Statutory provisions have extended the courts' powers when the defendant is outside the
jurisdiction. In deciding whether to exercise that discretion, the courts are able to take into
account a number of considerations, including the appropriateness of England as the forum.
Superimposed on this base of English law and practice are two conventions--the Brussels
Convention of the European Community member states, and the Lugano Convention between
the EC member states and the European Free Trade Area (EFTA) member states. The effect
of the Lugano Convention is to extend the Brussels Convention's provisions to EFTA
countries.
Whilst the European Community is now known as the European Union, the term European
Union has not simply replaced European Community, and this has led to some uncertainty as
to which is the correct term to use in a particular context. Strictly speaking, since the Brussels
Convention implements Article 220 of the EC Treaty, it is probably more correct in
discussing the convention to refer to the EC rather than the EU, but insisting on this
distinction may be needlessly confusing. To avoid this confusion, this article will use the term
European Union, or EU for short, although references to the EC will continue to be used,
certainly in the context of "EC law."
The 12 European Union states are Belgium, Denmark, France, Germany, Greece, Ireland,
Italy, Luxembourg, the Netherlands, Portugal, Spain and the United Kingdom. Negotiations
are under way for the admission of Austria, Finland, Sweden and Norway to the EU. Member
states of EFTA are Austria, Finaland, Iceland, Lichtenstein, Norway, Sweden and
Switzerland.

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The principal purpose of the conventions is to facilitate the enforcement of judgments among
the contracting states, but they also establish detailed provisions to determine jurisdiction.
Their effect is to restrict a national court's jurisdiction over parties based in other contracting
states and to harmonize the rules in those states. Insofar as the courts of contracting states
apply these rules in determining jurisdiction as among themselves, the conventions affect
parties based outside the contracting states. The conventions generally do not overrule any
contractual jurisdiction clause, save in these specific circumstances: (1) insurance and
consumer contracts; (2) when mandatory jurisdiction is required under Article 16; and (3)
when there has been submission to jurisdiction by appearance in proceedings.
The Brussels or 1968 Convention was signed by the then members of the European
Community in 1968 and came into force in 1973. A protocol conferring jurisdiction on the
European Court of Justice to interpret the convention was entered into in 1971 and came into
force in 1975. In England, statutory effect was given to the convention by the Civil
Jurisdiction and Judgment Act 1982.
The Lugano Convention, which is intended to strengthen co-operation between the EC and
EFTA, was adopted by the member states of the EC in 1988. In England, the Lugano
Convention was ratified in 1991 and came into force in May 1992 by virtue of the Civil
Jurisdiction and Judgments Act 1991, amending the 1982 act.
The Lugano Convention is substantially the same as the Brussels Convention, save that the
European Court does not have jurisdiction to give preliminary rulings on the interpretation of
the Lugano Convention. The second protocol to the Lugano Convention and subsequent
declarations provide, in essence, that the courts of the various EFTA states and the European
Court will pay due account to the decisions of each other when interpreting the meaning of
the conventions17.

17

www.highbeam.com

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Article 6 of Brussels and Lugano

Conventions
In cases coming within the scope of the Brussels or Lugano Convention, the basic principle is
that the plaintiff is expected to sue the defendant in the Contracting State in which the
defendant is domiciled18. In the situation where there are two or more defendants domiciled in
separate Contracting States this would mean the plaintiff bringing two or more actions in
different Contracting States. So, as an exception to this principle, Article 6(1) of the
Conventions provides that a person domiciled in a Contracting State may also be sued where
he is one of a number of defendants, in the courts for the place where any one of them is
domiciled. The Conventions provide the plaintiff with a choice. If, for example, there are
two defendants, one domiciled in England and the other in Germany, the plaintiff can choose
whether to sue both defendants in England or both in Germany.
Article 6(1), like Order 11, rule 1(1) (c), has the effect of concentrating litigation in one
Contracting State. Underlying this is a strong desire to prevent irreconcilable judgments. This
is obviously of vital importance in relation to conventions which are concerned with the
recognition and enforcement of foreign judgments. Interestingly, unlike Order 11, rule 1(1)
(c), it has not been seen as being desirable in order to avoid unnecessary duplication of
proceedings, with attendant expense, delay and inconvenience to the parties. Article 6(1) can
clearly operate in the case of joined defendants. Furthermore, according to the Court of
Appeal it can operate even though the parties are not jointly liable and the allegations made
against each defendant are very different19. With the introduction of lead actions and
representative actions the question arises of whether Article 6(1) can operate in relation to
these types of multi-party litigation. This question recently arose in relation to a lead action in
Barclays Bank Plc v. Glasgow City Council20. In this case over 200 actions were started in the
Commercial Court in London. Most of these actions involved a plaintiff bank and a defendant
local authority. Lead actions were selected for trial, so that important issues, common to
many of the cases, could be decided. One lead action involved defendants domiciled in
Scotland who wanted trial in Scotland. Nearly all the other actions involved English
defendants and there was no question but that there would be trial in England of these other
actions. It was argued that Article 6(1) of the intra-UK Modified Convention (which is
18
19
20

Art.2 of the Conventions

Gascoine v. Pyrah, [1994] I.L.Pr. 82
[1994] 2 W.L.R. 446

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worded essentially the same as Article 6(1) of the Brussels and Lugano Conventions) would
give the English courts jurisdiction in relation to this particular lead action on the basis that,
since there were English defendants, there was also jurisdiction against the Scots defendants.
At first instance Hirst J said that, although the European Court of Justice in Kalfelis v.
Schrder had referred to a requirement that the actions brought against the various defendants
must be related, he doubted whether this was intended to connote different defendants in
several different unconsolidated actions21. He also pointed out that Kalfelis seemed to
envisage a claim by the same plaintiff, unlike the present litigation where there were a very
large number of plaintiff banks in different actions. The Court of Appeal held that Hirst J had
correctly applied the principles in the Kalfelis decision to the unusual circumstances of the
present case.
Unlike Order 11, rule 1(1)(c), Article 6(1) does not cover third-party proceedings. There is a
separate provision in the Brussels and Lugano Conventions (Article 6(2)) to deal with such
proceedings. There is a concern in relation to Article 6(1) to uphold the principle that the
defendant should normally be sued in the Contracting State in which he is domiciled and to
ensure that an action should not be brought against a number of defendants solely with the
object of ousting the jurisdiction of the courts of the State in which one of the defendants is
domiciled. This concern has been met by a requirement that there must be a connection
between the claims made against each of the defendants22.
This requirement inevitably raises the question: how close does this connection have to be?
The European Court of Justice in Kalfelis v. Schroder23 answered this by looking at the
purpose of Article 6(1), i.e. to stop irreconcilable judgments. It held that there must exist
between the various actions brought by the same plaintiff against the different defendants a
connection of such a kind that it is expedient to hear these together to avoid irreconcilable
judgments. This requirement is most clearly satisfied in the situation where the claims made
against the various defendants are substantially the same in fact and in law, such as where the
defendants are joint debtors or joint tortfeasors. But the Court of Appeal in Gascoine v.
Pyrah24 has held that even when the claims against the various defendants are based on
different facts the connection requirement may still be met, provided that there is a risk of
21

[1992] 3 W.L.R. 827, 842.

22

Kalfelis v. Schrder, Munchmeyer, Hengst & Co. [1988] E.C.R. 5565, 5583
189/87 [1988] E.C.R. 5565.

23

24

[1994] I.L.Pr. 82

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irreconcilable judgments.

Article 6 and Order 11: A Critique

The analogy between Article 6(1) and Order 11, rule 1(1) (c) is perhaps more apparent than
real. The two provisions do not cover precisely the same types of multi-party litigation, do
not have the same precise justification, do not raise the same concerns or deal with these
concerns in exactly the same way. One provision involves the exercise of a forum conveniens
discretion; the other does not. The introduction by the English courts of additional
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requirements cannot therefore be justified by virtue of any precise analogy between the two
provisions.
Is there then any authority for introducing these additional requirements? It cannot be found
directly in the European Court of Justice's decision in the Kalfelis case, and the English
courts have made no attempt to explain the relationship between that case and the additional
requirements. Nonetheless, the valid claim requirement can be justified on the basis that it
undoubtedly helps to meet the concern expressed in the Jenard Report and the Kalfelis case
that an action should not be brought against a number of defendants solely with the object of
ousting the jurisdiction of the courts of the State in which one of the defendants is domiciled.
However, introduction of the necessary or proper party requirement cannot so obviously be
justified in this way25.

Additional Requirement
The English courts, influenced by what they see as an analogy with Order 11, rule 1(1)(c),
have introduced additional requirements, taken from that provision, into Article 6(1).
(a) A valid claim- In The Rewia26 the Court of Appeal held that there must be a valid claim
against the defendant domiciled in the forum. This helps to ensure that an action is not
brought solely with the object of ousting the jurisdiction of the courts of the State in which
the defendant is domiciled. The Court of Appeal saw a clear analogy between Article 6(1) and
25

J. J. Fawcett, Multi-Party Litigation in Private International Law.

26

[1991] 2 Lloyd's Rep. 325 (CA).

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Order 11, rule 1(1)(c). Indeed, Dillon LJ relied on The Brabo27 a case decided under the latter
provision, to support his view that the question whether there was such a valid claim should if
practicable be decided at the present preliminary stage.
The question of the validity of the claim against the defendant domiciled in England was also
considered in Gascoine v. Pyrah28. On the facts there was no problem in showing that the
action against the English-domiciled defendant was brought perfectly properly and regularly
since originally the action was brought against this person alone, and it was only when this
defendant implicated the German-domiciled vet that a decision was taken to join that person
as a second defendant.
(b) A necessary or proper part-. In Molnlycke A.B. v. Procter & Gamble Ltd29 the Court of
Appeal was concerned about the propriety of joining the second defendant to the action
against the first defendant. Dillon LJ stated that the test for joinder under Article 6(1) was the
same as that under Order 11, rule 1(1)(c). He went on to express the view that it would be
improper to join the second (foreign) defendant merely to obtain discovery in an action
against the first (English) defendant, especially since the requisite discovery doubtless could
be obtained from the second defendant in Germany under the Hague Convention on the
Taking of Evidence Abroad in Civil or Commercial Matters. What Dillon LJ was doing was
to introduce the necessary or proper party requirement under rule 1(1)(c) into Article 6(1).
Taking the view that the test for joinder under Article 6(1) is the same as that under Order 11,
rule 1(1)(c) to its logical conclusion, the determination of whether the second defendant is a
necessary or proper party for the purposes of Article 6(1) should be influenced by the English
procedural rules on joinder of parties, since, as has already been seen, this is what happens in
relation to Order 11, rule 1(1)(c)30.

27
28

[1949] A.C. 326

[1994] I.L.Pr.82

29

[1992] 1 W.L.R. 1112

30

Kaye, Civil Jurisdiction and Enforcement of Foreign Judgments (1987). pp.637

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Declining Jurisdiction under the Brussels &

Lugano Convention
Article 21 of the Brussels and Lugano Conventions deals with the problem of lis alibi
pendens by a mechanical rule which requires any court other than the court first seised to
decline jurisdiction in favour of that court. Lis alibi pendens is defined in terms of
proceedings involving the same cause of action and the same parties. The requirement that
the parties must be the same can cause problems in multi-party cases 31. For example, are the
parties the same in the situation where A sues B in the Netherlands and then subsequently B
and C sue A in England? Is the answer any different in the situation where A sues B and C in
the Netherlands and then subsequently B sues A in England?
These questions arose in The Maciej Rataj32In essence, and simplifying the facts, what
31

House of Spring Gardens Ltd v. Waite [1991] 1 Q.B. 241.

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happened was as follows. The plaintiff shipowners, A, commenced proceedings for a

declaration that they were not liable for contamination of cargo against B, C, D and E in the
Netherlands in 1988. Defendant B was a company which owned cargo carried to Rotterdam.
Defendants C, D and E were three out of the four companies who were the owners of parcels
of cargo carried to Hamburg. In 1989 C, D, E and F commenced proceedings against A in
England. F was the fourth company owner of the parcels of cargo discharged at Hamburg. C,
D, E and F argued that the parties to the English action were not the same as the parties to the
earlier Netherlands action because of the addition of F in the English action.
The Court of Appeal33 referred a number of questions to the European Court of Justice. One
of which was whether the courts of the Contracting State second seised must decline
jurisdiction:

only where there is a complete identity of parties between the two sets of
proceedings; or

only where the parties to the proceedings in the courts of the Contracting State
second seised are also parties to the proceedings in the courts of the
Contracting State first seised; or

whenever at least one of the plaintiffs and one of the defendants to the
proceedings before the courts of the Contracting State second seised are also
parties to the proceedings in the courts of the Contracting State first seised; or

whenever the parties in the two sets of proceedings are substantially the same?

Despite the complexity of these possible permutations there is a common thread underlying
all of them. This is the assumption that the court second seised should either decline or
exercise jurisdiction in relation to all the parties to the proceedings pending before it. The
case is being looked at as a whole. However, there is an entirely different approach which
could be adopted. This is for the court second seised to split up the parties to the proceedings
pending before it, so that jurisdiction is declined in respect of some of the parties but not
others. This was the approach adopted by the European Court of Justice.
The European Court of Justice held that Article 21 requires that the two parties be identical.
Consequently, the second court seised is required to decline jurisdiction only to the extent to
32

The Owners of the Cargo Lately Laden on Board the Ship Tatry v. The Owners of the
Ship Maciej Rataj [1995] I.L.Pr. 81
33
[1992] 2 Lloyd's Rep. 552.

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which the parties to the proceedings before it are also parties to the action previously
commenced; it does not prevent the proceedings from continuing between the other parties.
This means that there is no objection to an additional party to the proceedings in the court
first seised. Article 21 will still operate and the court second seised will decline jurisdiction in
relation to all the parties to the proceedings before it. Conversely, if there is an additional
party in the proceedings in the court second seised Article 21 will not operate in relation to
this additional party. It was accepted that this involves fragmentation of the proceedings.
However, it was pointed out that this can be mitigated by the use of Article 22 of the Brussels
(or Lugano) Convention, which deals with related actions and allows the second court seised
to stay its proceedings, even though the parties to the two sets of proceedings are not the
same. If it is a lis alibi pendens situation, as defined in Article 21, the court second seised has
to give way to the court first seised.

Multi-Party Cases: Is Special Choice of Law

Required
AS has been seen, the application of ordinary choice of law rules to multi-party cases
involves uncertainty as to what approach to apply, a lack of even-handedness in relation to
different plaintiffs, and inconvenience, delay and expense to the parties in proving different
applicable laws. One way of avoiding this is to introduce new rules which deal specifically
with multi-party litigation and which are different from the rules for single-party litigation.
For example, there could be a special tort choice of law rule for multi-party litigation,
according to which the law of the place of injury is always applied 34. There would be no
proper law of the tort exception to this rule. By using a connecting factor which avoids
mention of the parties' residence it is possible to ensure that the same law applies to all parties
to the litigation. In the area of contract choice of law there could be a rule that in multidefendant cases, in the absence of a choice of the applicable law by the parties, the law of the
plaintiffs habitual residence is applied, thereby referring to the common link which binds the
34

J. J. Fawcett, Multi-Party Litigation In Private International Law.

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defendants together, i.e. that they are all being sued by the same plaintiff. In multi-plaintiff
cases the law of the defendant's habitual residence could be applied. In a case which is both
multi-plaintiff and multi-defendant the law of the place where the contract was to be
performed could be applied.
There are a number of powerful arguments in favour of the adoption of such special multiparty litigation choice of law rules. First, such rules would ensure that a single applicable law
would apply for all parties to the litigation, thereby avoiding the problems of a lack of evenhandedness, inconvenience, delay and expense to the parties. Second, there are special bases
of jurisdiction which recognise the difficulties caused by multi-party litigation. The
difficulties created in the area of choice of law should likewise be recognised by special
choice of law rules. There are, though, a number of arguments against the adoption of such
rules. Firstly, multi-party litigation would have to be defined. This is no easy matter. Would it
include lead actions and representative actions? Secondly, once separate rules have been
introduced for multi-party and single-party litigation there is always the danger of
manipulation of the rules by a party who can easily add another person to gain the benefit of
the multi-party rule. It is the same sort of problem that has been encountered in jurisdiction
cases where safeguards have been needed under Order 11, rule 1(1)(c) of the Rules of the
Supreme Court and Article 6(1) of the Brussels and Lugano Conventions in order to prevent
abuse.
Thirdly, it is not easy to find an appropriate connecting factor for multi-party cases. For any
connecting factor that satisfies multi-party considerations may well be unsatisfactory in terms
of more general choice of law considerations. Thus a place of injury rule, whilst good in
terms of ensuring a single law is applicable to all parties, can lead to the law of a State with
which there is only a fortuitous connection being applied. There may be a much stronger
connection with another State, hence the need for a proper law of the tort exception. Multiparty cases are common and thus in a high percentage of cases the courts could end up
applying a rule which, in terms of general choice of law considerations, is flawed.
On balance, the disadvantages of a special rules approach outweigh the advantages. The best
way forward is to use existing ordinary choice of law rules in multi-party cases, but to use
whatever flexibility there is in these rules to ensure, as far as possible, that a single law is
applied to all parties.

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CONCLUSION
Multi-Party litigation can pose problems for the private international lawyer at each stage of
the conflicts process: finding a basis of jurisdiction; deciding whether to decline to exercise
jurisdiction; ascertaining and applying the applicable law. However, the recognition and
treatment of these problems are both haphazard and inconsistent. There is little difficulty in
finding a basis of jurisdiction in cases where there are two or more defendants, one from
England and the other from abroad, because of special rules on jurisdiction which deal
specifically with this situation. There is a clear policy of trying to concentrate litigation
involving all the parties in one State rather than having separate actions in different States.
There is a growing body of case law which has begun to address the problems arising from
multi-party litigation at the stage of declining jurisdiction. When it comes to the exercise of
the forum non conveniens discretion, the courts have been concerned to look at the case as a
whole and ascertain one single appropriate forum for all the parties, rather than to seek to
identify a separate appropriate forum for each pair of opponents. However, when it comes to
declining jurisdiction under Article 21 of the Brussels and Lugano Conventions a different
tack has been taken by the European Court of Justice and an approach has been adopted
which can lead to fragmentation of the proceedings.

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At the choice of law stage the picture is very different. There are no special rules for multiparty litigation and virtually no case law. This has meant that there is considerable uncertainty
in relation to the ascertainment of the applicable law under proper law approaches; it is not
clear whether the court should look at the case as a whole and ascertains one single proper
law for all parties or whether the courts should ascertain the proper law separately for each
pair of opponents. In so far as there have been suggestions by the Law Commissions for
dealing with multi-party litigation in the context of tort choice of law, what has been
proposed is that the action should be split up with potentially different laws being applicable
to different pairs of opponents. This fragmented approach is, of course, at odds with the
approach adopted by the English courts at the jurisdictional stage of the proceedings. Acting
consistently with that approach, the English courts should seek to ascertain one applicable
law for all the parties to the action. This is merely part of a wider malaise of regarding
jurisdiction and choice of law as two entirely unrelated areas. In truth the two areas are
interrelated and one area should take into account developments in the other.

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Bibliography
1. Atul M. Setalvad, Conflicts of Laws, 2nd Ed., 2009, Lexis Nexis Butterworth Wadhwa,
Nagpur.
2. Cheshire & North, Private International Law, 13th Indian Oxford Edition, Oxford
University Press.
3. Cheshire, North & Fawcett, Private International Law, 14 th Edition, 2008, Oxford
University Press.
4. Article on Multi-Party Litigation In Private International Law by J. J. Fawcett.
5. Article on, Civil Jurisdiction and Enforcement of Foreign Judgments (1987), Kaye.
6. Article on Choice of Law and Multistate Justice (1993), Juenger, Friedrich K.
7. Shaw, Malcolm N, International Law, 5 Ed, 2003, Cambridge University Press.

Reports:
1. International Law Reports
2. Halsbury Law of England
3. Halsbury Law of India

Websites:
1. www.google.co.in
2. www.wikipedia.org
3. www.halsburys.in
4. www.highbeam.com
5. www.accessmylibrary.com

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